The Supreme Court will refer to the Court of Justice of the EU an issue in an appeal brought by an alleged member of a dissident republican paramilitary group against his proposed surrender to Northern Ireland.
Seán Walsh (56), of Ballinlough, Douglas, Co Cork, is wanted to face charges of IRA membership stemming from a police surveillance operation on a July 2020 meeting of senior paramilitaries in Omagh, Co Tyrone. He denies the claims.
The Supreme Court’s seven judges on Thursday unanimously agreed to ask the European court whether a judge asked to approve an accused’s extradition must consider the EU’s Charter of Fundamental Rights if already satisfied there is no real risk to his rights under the Constitution and article 7 of the European Convention on Human Rights (ECHR).
The court was satisfied Mr Walsh’s surrender is not precluded by the ECHR or the Constitution.
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In a judgment for the court, Ms Justice Marie Baker said Mr Walsh’s contention that his surrender would breach his ECHR rights was not supported by the facts or his arguments.
Not only has no systemic flaw been identified that would suggest a likely egregious breach of his ECHR rights on surrender, but “the opposite is the case”, she said, as recent UK case law presents a legal system that “robustly and unequivocally” applies the ECHR.
Mr Walsh claimed his surrender, which was approved by the High Court in October 2022, would breach his rights under ECHR article 7, due to the retrospective application of a 2021 UK law that has “redefined” the scope of the penalty he faces if convicted.
ECHR article 7 states that no one shall be held guilty on account of any act or omission that did not constitute a criminal offence in law at the time it was committed.
The Court of Appeal of Northern Ireland found that the retrospective application of the 2021 legislative changes was incompatible with ECHR article 7, but this was reversed on appeal to the UK supreme court. This case concerned people who were convicted and sentenced before the enactment of the 2021 Counter Terrorism and Sentencing Act. The Act extends the period for which a person convicted of terrorism-type offences must remain incarcerated before they can apply for early release. Previously, there was potential for a custodial sentence to be reduced by 50 per cent, but the reduction is now capped at 33 per cent, the court heard.
This more limited reduction would also be subject to later approval by the parole commissioners at the ⅔ point of the sentence, creating more uncertainty than before, Mr Walsh submitted in the Supreme Court.
Mr Walsh argued the UK court’s decision amounts to a systemic failure or can be interpreted as evidence the UK courts have taken an erroneous approach to the interpretation of the ECHR.
In her judgment on Thursday, Ms Justice Baker said a court’s refusal to surrender under a valid European Arrest Warrant (EAW) must be seen as “wholly exceptional”.
Someone seeking extradition refusal on grounds of an apprehended denial of fundamental rights must illustrate egregious circumstances would expose them to a “real risk” of a denial of their fundamental rights, she said. This can include a fundamental defect in the legal system of the requesting state.
She and her colleagues accepted that release on licence is no more than a privilege that is exercisable by the executive, rather than the judiciary.
The court rejected Mr Walsh’s contention that it should rule on the “correctness” of the UK decision.
Such an approach would fail to respect the judicial sovereignty of the UK and usurp the jurisdiction of the European Court of Human Rights. Recent UK judgments illustrate that the Convention is “unequivocally adopted and applied” in the UK legal system, Ms Justice Baker added.
Given the principles of mutual trust, recognition and judicial co-operation in the EAW regime, the requesting state is the correct place to correct any apprehended breach of ECHR rights, if a remedy is available there, the judge said.
She rejected the argument that surrender should be refused on account of a perceived breach of Mr Walsh’s ECHR or constitutional rights.
However, she said, a “further complexity” arises concerning the level to which the charter is relevant to a court’s approval of an extradition. The court will refer this issue for determination by the Court of Justice.
Mr Walsh faces four charges including that he was an IRA member, that he was involved in directing IRA activities and that he was involved in a conspiracy to direct a terrorist organisation. He denies the allegations.
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